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iliui>iient  la  mAthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

h 


itS'-^"*"- 


'% 


AM1RIC4N  HISTO 


SSOCIATIOK. 


THE  DBOIT  BE  BANALITlS  DURJNO  THB 
PBEN€H  RfiOIME  IN  CANADA. 


W.  BENNETT  MUOTO, 

HAKVARB  UNIVKBSITV. 


VII.-THE  DROIT  J)E  EANALITE  DURING  THE  FRENCH  REGIME 

IN  CANADA. 


By  W.  BENNETT    MUNRO,  Ph.  D., 
HARVARD    UNIVERSITY. 


205 


/  9oO 
^    r ) 


THE  DROIT  DE  BANALITE  DURING  THE  FRENCH  REGIME  IN 

CANADA. 


By  W.  BKNNK-rr  Miinro. 


Among  th,>  many  oppressive  i„,.i,l,.„t.,  which  niarkod  tho 
land-tenure  system  ,.f  the  old  rcgin.e  in  Fnu,..,  not  the  last 
importon    were  the  '-tenal  rights"  (droits  de  bana  i  e     or 
the  privdeges  enjoyed  by  the  seigniors  ol  exclnsively  eo 
trolbng  certa,,,  of  the  instrnments  of  production  within  their 

totfi";:"!::;":'  '"■"'  "■■"'"'  «'™^'"-''o-es,  a„d  so  on, 

Whether  in  their  origin  these  banal  rights  were  the  result 
of  unlawful  usurpations  on  the  part  of  the  seigniors-adva 
tages  wrested  by  strength  from  weakness-of  wh  her  th  J 
simply  grew  out  of  the  mutual  wants  and  interests  of  the 
parties  concerned,  has  never  been  satisfiu-torilv  determ  ned- 
their  existence  as  legal  rights  was  recognised,  how™  i  ,' 
only  eleven  out  of  the  large  numiier  of  French  coutun;" 

;rbrn!lit/"'""'"T':  f"'"'  •'"^"'  "P°"  «>«  ^l>ole  subjen 
■!JZ'  :  ?'■  •^P"'''' °*  """"^l  rights  only  as  possible  "serv- 
itudes arising  as  the  result  of  mutual  agreements  made 
between  seignior  and  dependent. 

Notwithstanding  this,  mention  may  be  found  of  the  droit 
de  banalit,!  in  the  etablessments  and  ordonnances  as  far  b^k 

nturrrefh";?  '"^  "''"-'''"*  »""  "y  '^«  -™"'-^h 
nte«      •  th^  beeoi„e.-to  use  the  words  of  Champion- 

nieie  -    the    most  terrible  abuse   and    the    most  general 
exaction  of  the  whole  seigniorial  svstem." 


Uki 


most  of    the  other  ,seigni(")riul   exactions, 


the  banal 


,.:   u^  •    1  --g.-iwixai   i-AHctions,   me   oanal 

rights  varied  very  greatly,  both  in  nature  and  extent  in  d  ? 
f;;ron^parts<rfFmncc.     The  French  Government,  however, 

207 


208 


AMERICAN    HISTORICAL    A880CIATION. 


when  it  undertook  to  transplant  to  itn  North  American  pos- 
HessiouH  the  wyHteni  ot  Heijjniorial  tenure,  with  all  it.s  inei- 
dentH,  endeavored  to  secure  soine  degree  of  unit'ortnity  by 
pre.scribing  the  (Joutume  de  Paris  as  the  colonial  code.  And 
in  thus  ndieving  the  colony  of  the  legal  confusion  which 
necessarily  resulted  from  the  existence  of  so  many  different 
coutumes  at  home,  the  French  authorities  acted  Vtuy  pru- 
dently. But  their  vho'ive  of  a  suitable  coutume  for  colonial 
use  was  in  some  respects  less  sagacious.  The  greater  part  of 
the  colonial  settlers  came  from  the  northern  provinces  of 
France,  ^  Normandy  contributing  the  largest  share.  Paris  and 
the  surrounding  districts  contri})uted  little  beyond  the  admin- 
istrative officials  and  the  mem])ers  of  the  religious  orders. 
Furthermore,  the  immigrants  to  the  colony  came,  as  a  rule, 
from  the  agricultural  class  and  not  from  the  industrial  or 
commercial,  so  that  upon  arrival  in  Canada  they  found  them- 
selves subject  to  a  code  of  laws  which  was  not  only  totally 
unfamiliar  to  them,  but  also  out  of  harmony  with  the  needs 
of  an  agricultural  colony.  This,  nevertheless,  was  the  cou- 
tume— framed  for  the  use  of  an  urban  population — which  the 
French  Crown  saw  fit  to  introduce,  and  all  the  relations  of  the 
colonial  seignior  and  censitaire  were  henceforth  regulated 
according  to  its  provisions. 

The  Coutume  de  Paris,  as  revised  in  1580,  recognized  the 
enforcement  of  banal  rights  by  the  seigniors,  ])ut  with  two 
important  limitations  regarding  the  rights  as  applied  to  mills 
and  ovens.     These  were: 

(1)  No  seignior  can  compel  his  subjects  to  go  to  the  oven  or  mill  which 
he  pretends  banal  *  *  *  if  he  have  not  a  valid  title  *  *  *  and  no 
title  is  reputed  valid  if  it  has  not  been  executed  more  than  twenty-five 
years.  ** 

(2)  A  windmill  (moulin  A  vent)  can  not  be  banal,  nor  under  this  pre- 
text can  the  neighboring  millers  be  prevented  from  canvassing  for  grain 
(chasser),  if  there  be  not  a  written  title  or  acknowledgment  as  above.'' 

According  to  this  custom,  therefore,  the  rights  of  mill  and 
oven  banality — which  were  the  only  ones  ever  enforced  in 
Canada — were  not  prescriptive,  but  contractual  rights.  They 
could  be  exacted  by  the  seignior  only  when  they  had  been 


'Suite,  Origin  of  tlie  French  ranarlians  (Ottawa,  1897),  p. 
2Brodoaii,  Contume  (ie  Paris,  Art.  71. 
aibid..  Art.  72. 


3 


THE    DROIT    DE    BANALITE. 


209 


► 


> 


expressly  stipulated  for  in  the  title  deeds  of  his  subcrrants, 
and  ill  no  case  could  a  windmill  be  deemed  a  )msis  for  the 
enforc('meiit  of  banal  rijr|,ts.  As  the  former  of  these  limita- 
tions did  not  appear  in  the  Coutume  do  Paris  before  1680, 
but  was  inserted  during  the  coursi^  of  the  revision  in  that 
year,  it  would  seem  as  if  the  policy  of  the  French  (Govern- 
ment was  to  place  more  resti-ictions  upon  the  exercise  of  the 
rights  of  l>ar:ility  by  the  stujjniors. 

Jn  ('anuda,  on  the  other  hand,  not  only  were  these  restric- 
tions disrejriirded,  but,    s  we  shall  find,  the  French  Crown 
and  its  re})resent'itives  took  active^  measures  to  estal)lish  and 
enforce  the  l)anal  obligations  in  all  parts  of  the  colony.     And, 
pai  adoxical  as  it  may  appear,  the  chief   burden  of  this  en 
fora>ment  fell  not  upon  the  cetr-;itaires,  but  upon  the  seigniors. 
During  the  period  of  almost  half  a  century  (1627-1()63), 
throughout  which  the  colony  was  in  the  hands  of  the  Com- 
pany of  One  Hundred  Associates,  very  few  of  the  sixty-odd 
grants  (mi  fief  were  taken  in  hand  by  the  grantees.     The  ob- 
jecc  of  the  company  was,  primarily,  to  till  its  cofiers  with  the 
profits  of  the  fur  trade,  and  the  directors  paid  very  little 
attention  to  the  matter  of  colonial  settlement  or  organization. 
On  a  few  of  the  seigniories,  however,  mills  were  built  and 
used  by  the  somewhat  sparse  population,  under  what  condi- 
tions of  payment  can  not  be  definitely  ascerfoiined.     In  1652 
wo  find  trace  of  the  first  ofiicial  r(>gulation  concerning  the 
management  of  the  seigniorial  mills  in  an  ordinance  of  the 
governor,  M.  de  Lauzon.     This  ordinance  was,  apparently, 
never  enregistered,  as  no  copy  of  it  can  be  found,  but  mention 
is  made  of  it  some  tifteen  years  later  in  an  ordinance  issued 
by  the   intendant  and   council   reiterating   its   purport  and 
ordering  its  enforcement.     This  later  ordinance '  (March  28, 
1067)  goes  on  to  declare  that — 

Considering  that  it  has  been  represented  to  us  by  the  attorney-general 
that  several  abuses  are  being  conimitted  by  the  millers  of  this  country 
with  respect  to  the  grinding  of  grain,  and  to  remedy  which  it  would  seem 
fit  to  reiterate  the  ordinance  made  in  1(552  by  the  late  governor  of  this 
country,  j\I.  de  Lauzon,  and,  reviewing  the  said  ordinance,  the  council, 
adjudicating  thereon,  hath  ordained  and  doth  ordain  that  it  shall  have  its 
full  and  entire  force,  saving  the  right  of  adding  to  it  in  future  should 
necessity  arise. 


1  Edits  et  Ordoiinancea  Connernant  le  Canada,  II,  p.  30. 


HIST   1)9.  VOIi   1 


-14 


210 


AMERICAN    HISTORICAL    ASSOCIATION. 


Tlip  ordinaiK'o  then  proceeds  to  provide  that  "  the  damages 
siitiered  by  tenants  carrying  their  grain  to  ])e  ground"'  at  the 
seisrniorial  mills  "shall  be  had  from  the  owners  of  the  said 
mills,  saving  to  these  the  right  of  deducting  the  same  from 
the  wages  of  their  paid  millers/''  These  appear  to  have  been 
the  first  ordinances  relative  to  the  matiagement  of  banal  mills, 
Init  others  were  not  long  in  following.  On  June  20  of  the 
same  year  (16(!7)  an  ordinance  ^  of  the  intendant  and  council 
v/as  issued  in  response  to  a  petition  presented  some  few  days 
previously  on  behalf  of  "  most  of  the  proprietors  of  mills  in 
the  colony,'"  wherein  it  was  stated  *  that  the  mills  of  this  col- 
ony cost  double  or  treble  those  of  France,  as  well  for  their 
construction,  maintenance,  and  repair  as  for  the  wages  and 
l>oard  of  the  millers,"  in  consequence  of  which  the  petitioners 
declare  that  they  might  with  justice  ask  "that  the  toll  he 
proportioned  to  the  above  expenses  and  conse(iuently  be  fixed 
above  the  usual  toll  in  France."  Notwithstanding  this  the 
petitioning  seigniors  went  on  to  say  that  th(\v  were  satisfied 
with  the  current  rate  of  toll  and  as'v  for  the  issue  of  an  ordi- 
nance fixing  this  customary  rate  for  general  use  in  the  colony. 

In  accordance  with  the  prayer  of  this  petition,  the  ordi- 
nance of  June  20,  1667,  ordered  the  rate  of  toll  to  be  fixed  at 
one-fourteenth  of  the  grain  ground.  Furthermore,  it  em- 
powered the  Government  officials  "  to  go  from  time  to  time 
from  place  to  place  to  gauge  the  measures  used  in  the  i  lills, 
and  to  find  out  generally  Avhat  is  going  on,"  and  declared  that 
where  seigniors  had  leased  their  mills  the  censitaires  should 
have  recourse  for  damages,  "in  the  event  of  malv(>rsation  by 
the  millers,"  upon  the  lessee  and  not  upon  the  proprietor. 
Finally,  in  order  to  guard  both  against  fraud  on  the  part  of 
the  milloi'  and  the  preferring  of  groundless  accusations  by  the 
censitaire,  the  ordinance  required  tha  "'owners  of  grain  taken 
to  be  ground  should  be  held  to  have  their  grain  weighed,  in 
default  of  which  their  complaints  should  not  be  heard.""  This 
practice  of  administrative  interference  in  the  management  of 
seigniorial  mills  was  not  peculiar  to  the  colony;  it  had  been 
common  in  France,  where  it  was  ^'ustitied  on  the  grounds  of 
public  polic}'." 

1  Ed'ts  vt  ordonnances  Concornant  k'  Cnnacliv,  II,  i).  89. 

-KegurdiiiK  lliis  Ih'iirion  do  I'misfy  ob'^ervi's  (Dissertations  Fi-otlales.    Paris,  1789,  p. 
•Jl"),  soc.  llti:  "  HiU  aticivt!  tlu' authority  of  tlu'  soigiiiors  tlii'rc  is  mi  autliority  of  a  higher 


THE    DROIT    1)E    BAN  A  LITE. 


211 


In  France  the  amount  of  toll  exacted  for  the  jjrinding  of 
corn  at  the  banal  mills  varied  in  diti'erent  parts  of  the  King- 
dom. In  the  Coutume  de  Paris  it  was  fixed  at  one-fourteenth, 
and  the  effect  of  the  ordinance  of  KWu  was  therefore  simply 
to  specifically  apph'  this  rate  to  the  colony.  The  remunera- 
tion of  the  seigniorial  mill  owner,  ])eing  fixed  at  a  definite  per- 
centage of  the  grist,  varied,  ol)viously,  with  variations  in  the 
price  of  grain,  which  latter,  especially  during  the  closing 
period  of  the  French  regime,  were  very  marked.  During  the 
period  of  thirty  years  from  1729  to  1759  the  price  of  wheat 
ranged  all  the  way  from  2  francs  to  10  francs  per  minot,  or 
measure  of  about  three  French  bushels. 

But  despite  the  assertions  of  the  seigniors  in  the  petition  of 
1067  that  they  would  be  satisfied  with  the  usual  rate  of  toll, 
there  seem  to  have  been  some  attempts  on  the  part  of  certain 
of  their  number  to  exact  more  than  the  legal  rate.  In  the 
lengthy  code  of  "Police  regulations,"  issued  by  the  intendant 
some  years  later  (1H76),  a  clause  was  inserted  '  forbidding  all 
millers  from  ""causing  more  than  one-fourteenth  to  be  paid 
for  the  toll  of  grist."  Likewise,  the  millers  of  each  seigniory 
are  forbidden  to  compete  with  one  another  (le  chasseur  les  uns 
sur  les  autres),  as  e.  g.,  by  soliciting  grist  from  the  inhabitants 
of  seigniories  other  than  their  own. 

But  the  number  of  mills  increased  very  slowly,  owing, 
doubtless,  to  the  poverty  of  the  seigniors,  most  of  whom  could 
ill  afford  the  means  necessary  to  build  the  mills  and  to  im- 
port from  France  the  needed  machinery.  The  stones  were 
quarried  in  the  colon}' ;  all  else  had  to  be  imported.  The  toll 
received,  except  in  the  case  of  the  more  populous  se-^'niories, 
often  scarcelv  sufficed  to  pay  the  wages  of  a  miller  and  the 
result  was  that  in  many  of  the  seigniories  no  mills  were  erected. 
This  state  of  affairs  was  soon  brought  to  the  notice  of  the 
F"rench  King,  and  the  latter,  in  keeping  with  his  usual  zeal 
for  the  rapid  development  of  the  colony  and  in  consonance 
with  his  unlimited  faith  in  the  efficacy  of  royal  edicts  as  the 
general  panacea  for  tardy   industrial   progress,  at  once  set 

orrtor  to  which  behjiigs  all  that  can  interest  imhlic  i.olicy,  *  *  *  and  \vhic'h  has  tJie 
right  to  restrict  tlie  lilierty  ot  eaeii  imiu  idual  lor  tlic  good  of  tlie  greatest  niinit)er.  'I'lu! 
mills  intende<l  to  give  the  first  {ireparalioiis  to  the  chief  article  of  fnod  must  necessarily 
1)0  subject  to  the  inspection  of  tliis  supreme  authority,  which  has,  then,  the  right  not 
only  to  control  them  but  to  regulate  their  number." 
1  Ed.  ot  Ord. ,  II,  (Vf-n,  sec.  36. 


212  AMERICAN    HISTORICAL    ASSOCIATION. 

about  a  reformation  of  the  colonial  milling-  industry.    In  1686 
he  issued   an   important  arret,'  one  of   the  most  unportant 
edicts  concerning  the  droit  de  banalite  in  the  colony.     After 
declaring  that  he  has  been  informed  'Hhat  most  of  the  seign- 
iors who  are  holders  of  fiefs  in  New  France  n<>glect  to  erect 
the  banal  mills  necessary  for  the  subsistence  of  the  inhabit- 
ants of  the  country,"  and,  "in  order  to  remedy  an  evil  so 
prejudicial  to  colonial  welfare,"  he  proceeded  to  ordain  that 
"all  seigniors  who  are  holders  of  fiefs  within  the  territory  of 
New  France  should  be  bound  to  erect  their  banal  mills  therein 
within  the  space  of  one  year  after  the  publication  of  this 
decree,^  in  default  of  their  doing  which  "his  majesty  per- 
nuts  all  individuals,  of  whatever  condition  and  rank  they  may 
be  to  erect  such  mill;-,,  granting  to  them  in  that  respect  the 
right  of  banality,  and  prohibits  any  persons  from  disturbing 
them   in  the  right  thereof."     This  edict,  the   provisions  of 
which  were  intended  to  stir  up  tli..  unprogressive  seigniors 
was  duly  registered  by  the  superior  council  at  Quel)ec,^  on 
Octo])er  21,  1686,  and  was  ordered  to  be  promulgated  at  the 
necessary  and  accustomed  places.    Strange  to  say,  this  required 
publication  did  not  take  place  till  some  twenty  years  later 
During  the  period  1686-1707  the  seigniors  continued  to  l)uild 
nulls  or  not,  as  they  found  it  profitable  to  do  so  or  not  to  do  so 
In  the  latter  case,  however,  they  invariablv  took  care  to  insert 
in  their  contracts  of  concession  the  obligation  on  the  part  of 
the  grantees  to  carry  their  grain  to  the  seigniorial  mill  "  when- 
ever such  shall  l)e  erected  within  the  seigniory."     The  long 
delay  m  the  puldication  of  the  arrSt  of  1686  is,  in  all  proba 
bility  correctly  explained  by  M.  Raudot,  intendant  of  Canada 
in  a  dispatch  to  the  French  minister,  dated   November  10 
1<07.'''  ' 

He  writes: 

I  8houl.lthink,  My  Lord,  that  it  would  be  necensarv    *    *    *    that  thp 
exch,..ve  right  ..f  grinding  should  be  pre.erve.l  to  the  seignior,  on  eon.li 
^on  of  their  bmldnig  a  null  on  their  seigniories  within  a  year,  failing  in 
u.h  then,  right  should  be  forfeited,  and  the  iuhabitants^oild  not  b 
obhged  when  one  was  bull,  to  have  their  <.oru  ground  there;  otherwise, 
My  Lord,  they  w.li  never  bejnduced  to  er^  nulls,  from  the  privation  oi 

'Ed.etOrd.,!,  p.2")r).  - 

-Ibid.,  p. 'jfrti. 


" 


THE    DROIT    1)E    BANALITE. 


213 


which  the  inhahitantH  suffer  greatly,  being  unable,  for  want  of  Mieans,  to 
av^il  theniHelveH  of  the  fav-.r  whi(-h  his  umjeHty  has  granted  them  by  per- 
mitting them  to  erect  mills  in  case  the  seigniors  do  not  do  so. 

The  dispatch  continues: 

This  was  granted  them  in  the  year  1680  by  an  arret  which  was  registered 
by  the  superior  council  of  this  country,  but  not  having  ])een  sent  to  the 
subordmate  jurisdictions  to  be  promulgated,  the  inhabitants  have  not  hith- 
erto profited  by  this  favor,  and  it  is  only  since  mv  arrival  here  that  the 
decree  lias  been  pul)lished,  the  fac;t  of  its  nonpublication  having  only  come 
to  my  knowledge  in  the  course  of  a  lawsuit,  recently  determined,  in  which 
the  arret  was  produced,  but  one  of  the  parties  was  not  able  to  take  advan- 
tage of  It  because  it  had  never  been  promulgated. 

And  he  goes  on  to  say: 

The  fault  can  only  be  attributed  to  the  Sieur  d'Auteuil,  whose  dutv  as 
attorney-general  is  to  transmit  such  decrees  to  the  subordinate  courts  but 
It  was  his  interest  as  a  seignior,  as  also  that  of  some  of  the  other  coun- 
cilors who  are  also  seignior,.',  not  to  make  known  this  decree. 

Raiidot  proceeded,  on  the  discovery  of  this  nonpublication  of 
the  royal  arret  to  issue  an  ordinance  ordering  its  publication 
without  delay/  From  the  foregoing  may  be  seen  plainly  the 
desire  of  Louis  XIV  to  make  the  droit  de  banalite  obligatory 
in  all  parts  of  the  colony,  in  the  interest,  however,  not  of  the 
seignior,  but  of  the  habitant,  together  with  the  equally  strong 
disinclination  of  many  of  the  seigniors  to  conform  to  the  roval 
will. 

By  the  Coutume  de  Paris  (article  71)  no  seignior  was  allowed 
to  exact  the  droit  de  banalite  from  his  dependents  unless  he 
had  stipulated  for  such  right  in  his  deeds  of  concession.  In 
the  colony  this  limitation  was  not  observed.  Wherevei  a 
seigniorial  mill  was  erected  the  censitaires  w(M-e  recjmred  to 
carry  their  grain  thithiM'  to  })e  ground  whether  this  condition 
had  been  imposed  upon  them  by  their  title  deeds  or  not,  and 
wherever  the  seignior  met  with  refusal  the  aid  of  the  intend- 
ant^  was  invoked.     For  exampl(>,  some  of  the  ceiisitaires  of 

I  Ed.  ot  Ord.,  II,  145-150.  The  orders  „f  the  French  Government  relath^T(^lonial  n7- 
fairs  were  .•..mmiuneat,.,!  lu  the  ollirials  of  the  ...,lon.v  in  lu-.,  wavs:  (1)  Bv  arrets  or  edicts 
d..s,mtched  to  the  intendant,  and  .vgistered  in  the  re,.onls  of  the  superio;  ..onncil  at  Qm-- 
be.s  which  corresponded  to  the  parHament  of  Paris  in  France  J-his  conneil  consisted  of 
the  Kovertior.  intendant,  and  hishops  of  the  colony  ex  ollicio,  t.-.-ther  with  ..ertain  other 
omciHls  vsenenUly  drawn  from  ilie  colonial  (...piiiaiion)  ai)poinie<l  bv  the  King     \iter 


registry  these  arrets  were  i)iiblished  hy  being 


and  Tliree  liivers,  t 


sent  to  the  royal  courts  at  Montreal,  Qnebec 


and  intendant     These  were  not 
made. 


le  rcaii  in  open  court;  ('J)  Hy  private  instruct 


ions  to  tl 


eiiregistered,  nor  was  any  promulgation  of  their  eonlen 


e  governor 


ts 


214 


AMEKICAN    HISTORICAL    ASSOCIATION. 


Demauro  in  1 71B  rct'iisi^d  to  Jivtiil  themselves  of  the  seio-niorial 
mill  on  the  j^Toiind  that  their  title  deeds  eontained  no  provision 
('ompellinj,^  them  to  do  so.  The  seij^nior.  Franyois  Aubert, 
brought  the  matter  before  the  intendant  who  issued  an  ordi- 
nanee'  ordering  the  eensitaires  one  and  all  to  l)ear  their  grain 
to  the  banal  mill  under  penalty  of  a  tine,  the  ordinance  "to  be 
published  at  the  door  of  the  parish  church  of  the  seigniory 
upon  the  tirst  Sunday  or  fast  day  so  that  it  may  be  diregarded 
by  none." 

Again,  as  has  been  seen,  according  to  the  Coutume  de  Paris 
a  windmill  could  not  be  made  banal  (article  72).  This  distinc- 
tion between  mills  driven  by  water  power  and  wind  power,  as 
regards  seigniorial  rights  based  thereon,  was  likewise  soon 
removed  in  the  colony  by  an  ordinance  of  the  intendant  issued 
in  July,  l()7o."  The  inunediate  cause  of  the  issue  of  this  ordi- 
nance was  the  presentation  to  the  superior  council  of  a  peti- 
tion signed  by  one  Charles  Morin,  miller  of  the  seigniory  of 
Demaure,  praying  that  he  be  permitted  to  grind  the  grain 
of  the  eensitaires  resident  within  the  neighboring  seigniory 
of  Dombourg,  inasmuch  as  the  mill  of  the  latter  seigniory  was 
worked  by  wind  power  and  consequently  could  not  be  included 
within  the  category  of  banal  mills. 

The  council,  after  hearing  in  defense  the  lessee  of  the  Dom- 
bourg mill,  and  after  taking  the  opinion  of  the  attorney- 
general  on  the  matter,  decided  to  "dismiss  the  demand  of  the 
said  Morin  and  to  ordain  that  all  mills,  whether  they  be  water 
mills  or  windmills  (soit  a  eau  soit  a  vent),  which  the  seigniors 
have  built  or  will  hereafter  build  in  their  seignit)ries  shall  be 
banal  mills,  and  that  their  eensitaires  who  shall  be  bound  by 
their  d(>eds  to  that  effect  shall  carry  their  grain  to  such  mills/' 
Furthermoi-e,  this  ordinance  forbade  the  proprietors  of  mills 
to  induce  eensitaires  of  other  seignories  to  <  .me  to  their  mills 
under  penalty  of  tine,  together  with  the  contiseation  of  the 
grain  and  the  \-ehicles  carrying  it.  The  issue  of  this  ordinance 
is  but  one  out  of  the  many  instances  which  mark  the  constant 
attempt  on  the  part  of  the  central  power  to  adapt  the  seigni- 
orial system  to  the  changed  customs  under  which  it  had  been 
established.  Every  seigniory  did  not  possess  an  available 
water  power,  and  to  deny  the  extension  of  the  banal  right  to 
windmills  would  have  given  most  of  the   seigniors  a  valid 


i  " 


1  Ed.  etOrd.,  II,  448-449. 


»Ibid.  11,62. 


THE    DROIT    DE    BANALITEl. 


215 


i  " 


;. 


excuse  for  neglocting  to  build  thoir  mills  whenever  they  found 
such  a  course  prc^fitiihle,  and  would  have  thus  deprived  the 
censitaires  of  what  was  a  convenience  rather  than  a  burden. 
There  was,  however,  one  disadvantage  concerning  the  wind- 
mill—the power  was  very  unreliable.  The  habitants  ^  br  ing 
ing  their  grist  to  the  seigniorial  windmill  often  found  it  nec- 
essary to  lose  many  valuable  hours  waiting  for  the  breeze  to 
blow.  A  clause  in  the  aforementioned  ordinance  therefore 
provided  that  if  the  windmill  of  their  own  seigniory  could 
not  grind  their  grain  within  the  space  of  forty-eight  hours 
after  it  had  been  brought  thither,  the  habitants  should  have 
full  liberty  to  take  their  grist  elsewhere. 

It  will  be  seen  that  by  the  early  years  of  the  eighteenth  cen- 
tury the  banal  right  in  Canada  had  differentiated  itself  in  three 
ways  from  that  existent  in  France  under  the  custom  of  Paris. 

1.  The  right  could  be  enforced  by  the  seigniors  even  although 
they  had  not  stipulated  for  it  in  their  contracts  of  concession. 

2.  All  mills,  whether  driven  by  wind  power  or  water  power, 
could  be  made  the  basis  for  the  exercise  and  enforcement  of 
the  banality. 

3.  Any  seignior  who  failed  to  Iniild  a  mill  within  the  limits 
of  his  seigniory  within  a  given  time  lost  all  claim  to  the  right, 
the  latter  becoming  the  propei-ty  of  anyone  who  was  willing 
to  proceed  with  the  erection  of  the  mill. 

The  arret  of  1707  was  not  allowed,  like  many  others  of  its 
kind,  to  become  a  dead  letter.  Within  a  few  months  after 
its  publication  the  intendant  showed  that  he  was  in  earnest  by 
pronouncing  the  forfeiture  of  the  right  in  the  case  of  the 
seignior  of  ]VIille  Isles. 

"All  the  inhabitants  of  the  seigniory  of  Mille  Isles,"  the 
decree  of  forfeiture  recites, '"'  have  caused  the  seignior  Dupre,*^ 
proprietor  of  the  said  seigniory,  to  come  before  us  that  he 
may  be  ordered  to  build  a  mill  for  them,  or,  if  he  do  not 
choose  to  do  so,  to  consent  that  they  should  be  allowed  to 
build  one  for  thiMuselves,  in  which  case  they  should  be  dis- 
charged from  their  banal  obligation  and  allowed  to  utilize  the 
right  for  their  own  benelit."^'     The  seignior  having  admitted 

'  The  Froiu'li-Ciiiuuliiui  iK'usiint  iilwavs  sniiniiHl  the  terms  ceiisilnire  or  nitnrier.  Ho 
invariably  s])oke  of  himself  as  "the  hahituiit.'' 

2This  is  probably  a  misprint  for  Diigiie  or  Diijjuay,  who  was  seignior  at  this  time.  (See 
Titr(!'s  fles  Seigiieuries,  I,  p.  59. ) 

^Judgment  of  14  June,  1707,  Ed.et  Onl.,  II,  i:27.  In  1720  the  arret  of  1707  was  ordered  to 
be  enregistered, published, and  enforeed  in  Acadia  as  well  as  in  "Canada,"  Ed.etOrd., 
II.  167. 


21 « 


AMERICAN    HISTOKICAL    ASSOCIATION. 


his  inability  to  proceed  with  the  erection  of  a  mill,  the  jud^r- 
mcnt  proceeded  to  ''p(>rniit  the  said  hahitanl.^  to  erect  a  mill 
in  such  part  of  the  seigniory  as  they  shall  deem  tit,  and  by  so 
doing  to  be  discharged  from  the  obligation  of  banality  to  the 
seignior  forever,  being  allowed  to  exact  it  for  their  own 
advantage."  Here  we  have,  therefore,  under  a  seigniorial 
system,  the  somewhat  unusual  spectacle  of  a  group  o*f  censi- 
taires  being  permitted  to  exercise  seigniorial  rights  over 
themselves.*  In  the  same  month  a  somewhat  similar  judg- 
ment was  issued  against  the  seignior  of  Varennes,  while  others 
followed  from  time  to  time  during  the  course  of  the  next  few 
years.  After  Kaudot's  tenure  of  the  intendancy  had  expired, 
however,  the  enforcement  of  the  arret  of  1707*  became  more 
lax,  and  there  can  be  no  doubt  that  many  seigniors  neither 
built  their  mills  nor  were  deprived  of  their  rights. 

Subsequent  intendants  devoted  their  attention  rather  to  the 
reformation  of  abuses  which  had  sprung  up  in  connection 
with  seigniorial  mills  already  in  operation.     In  1715  a  some- 
what lengthy  code  of   regulations'"^  was  framed,  providing 
among^other  things  'Hhat  the  owners  of  banal  mills  shall  be 
held     *     *     *     to  have   scales   and   weights,    stamped    and 
marked  to  weigh  the  wheat  which  shall  be  carried  there  to  be 
ground  and  the  flour  which  shall  l)e  made  therefrom."    The 
judges  of  the  royal  courts  were  given  power,  when  this  regu-. 
latioii  was  found  not  to  have  been  complied  with,  to  have 
proper  scales  and  weights  put  in  and  arranged  at  the  seignior's 
expense.  =»    These  judges   were,   f-.irthermore,    instructed  to 
examme  the  toll  measure  of  each  mill  and  '^to  have  it  made 
exact  and  stamped,  prohibiting  all  millers  from  taking  toll 
with  any  other  measure  than  that  which  shall  have  bcH^n  so 
stamped. "    Millers  are  enjoined  to  cut  the  weight  of  the  grain, 
toll  deducted,  upon  a  tally,  handing  over  to  the  habitants  one 
duplicate  half  of  this,  in  order  that  they  may  \'erify  the  weight 
of  their  flour  when  it  is  handed  over  to  them".  They  are,  finally, 
forbidden,  under  penalty  ^'even  of  corporal  chastisement."  to 
wet  the  grain  brought  to  them  in  order  to  have  the  flour 
thereof  heavier.*     In  addition  to  this  general  code  of  regula- 
tions, ordinances  were  issued  from  time  to  time  seeking  to 


1 C.  F.  Ashley,  Economic  History,  Vol.  I,  p.  37. 
"Ed.  etOrd.,  II,  169. 


■'Ibid.,  Art.  5, 
■•Ibid.,  Art.  9. 


'f 


) 


THE    DROIT    1)E    BANALITE. 


217 


'1. 


effect  improvemonts  in  the  niachlnery  und  niiiiuiffement  of  par- 
ticular mills,  a.id  from  tho  very  considorahlo  number  of  these 
It  would  seem  that  the  system  of  s,Moni(,rial  flour  making  was 
not  always  wholly  satisfactory.     For  example,  in  1714  one  of 
the  habitants  of  the  seigniory  of  Vincelotte,   having  been 
brought  before  the  council  on  a  charge  of  having  '^sent  his 
grain  to  strange  mills,"  urged  in  defense  of  his  action  that  he 
had  been  obliged  to  take  part  of  his  grain  elsewhere  than  to 
the  mill  of  his  own  seigniory,  because  the  latter  was  '•  no  good;" 
that  it  '•  made  very  l)ad  flour,"  and  that  ''the  miller  who  worked 
the  mill  gave  too  small  return  of  Hour  for  grain. " '    The  coun- 
cil declared  the  defense  of  the  habitant  good,  and  ordered  the 
seignior  to  have  his  mill  improved— having  done  which  his 
right  would  be  enforced.    From  this  decision  the  seignior  made ' 
appeal  to  the  king,  but  the  latter  confirmed  the  action  of  the 
council,  adding  that  habitants  should  be  allowed  to  have  their 
grain  ground  elsewhere  whenever  the  seigniorial  mill  should 
be  "stopped  in  any  manner  and  for  any  reason  whatsoe\er." 
In  1728  several  inhal)itants  of  the  seigniory  of  Grondines 
set  forth,  in  a  petition  to  the  superior  council  that  "they  are 
compelled  to  take  their  grain  to  the  windmill  of  the  seigniory, 
which  is  most  grievous  and  pi-e judicial  to  them  inasmuch  as 
the  stones  only  crack  up  the  wheat,  both  ))ecaiise  the  mill  has 
been  absolutely  ruined  })y  the  different  persons  who  have  run 
it  heretofore,  and  because  the  Sieiir  Hamelin,  who  now  runs 
it  (Hamelin   was   himself    the  seignior  of  Grondines),   not 
being  a^  miller  by  trade,  simply  increases  the  defects  in  the 
flour.     "^As  it  was  flour,  and  not  cracked  wheat,  which  the 
habitants  wanted,  they  asked  that  experts  should  be  appointed 
to  exanune  the  mill  and  to  report  the  state  of  afl'airs  to  the 
council.      The    seignior    being    called  on   for  his   defense, 
declared  that  his  mill  was  "  in  excellent  order;"  that  while  it 
was  true  that  he  was  running— or  trying  to  run— the  mill 
himself,  this  was  not  his  fault,  his  miller  having  been  called 
out  to  do  military  service;  that  he  was  just  about  to  secure 
the  services  of  a  competent  flour  maker  and,  Anally,  that  he 
invited  the  appointment  of  experts  who  should  satisfy  them- 
selves of  the  truth  of  his  stutements.     The  council,  taking  the 
seignior  at  his  word,  ordered  a  visit  to  the  mill  by  a  board  of 
experts,  with  what  result  is  not  recorded. 


1  Titles  1111(1  DociiinciUs,  II,  224. 


"Ed.  etOrd.  Ill,  241. 


218 


AMERICAN    HISTORICAL    ASSOCIATION. 


In  the  .same  year  the  ha})itauts  of  the  seigniory  of  St.  Anne 
de  la  Parade  sent  a  delegation  })efore  the  authorities  at  Quebec 
to  complain  that  the  mill  of  that  seigniory  was  -'entirely  out 
of  order;"  that  "the  miller  was  not  only  a  dishonest  man,  but 
was  known  to  the  seignior  as  such,"  and  that  the  mill  was  not 
of  sufficient  capacity  to  grind  out  all  the  flour  which  was 
required  for  the  maintenance  of  the  habitants  and  their  fami- 
lies. *  The  inhabitants  of  the  seigniory  of  Neuville  were  bet- 
ter provided  for,  since  there  were  in  the  seigniory  two  banal 
mills— one  a  windmill,  the  other  a  water-power  affair.  This 
double  facility  appears,  however,  to  have  availed  them  little, 
for  in  1733  they  made  complaint  to  the  council  that  the  former 
seldom  ran,  and  the  latter  turned  out  defective  flour.  Further- 
more, they  declared  that  "when  the  windmill  failed  for  wind 
or  the  water-mill  for  water  the  seignioi-  kept  them  hauling 
their  grain  back  and  forward  from  one  mill  to  the  other  as 
often  as  three  times.  "^ 

They  asked,  among  other  things,  that  the  seignior  be  ordered 
to  keep  a  regular  miller,  who  should  live  near  the  mill,  and 
that  he  should  provide  "stamped  weights  of  iron  instead  of 
stones,  the  weight  whereof  is  not  shown."  In  this  last  request 
is  an  interesting  bit  of  evidence  as  to  the  general  equipment 
of  the  banal  mills  of  the  old  reirime. 

Complaints  were  sometimes  made  that  seigniorial  mills  had 
been  erected  in  places  which  the  habitants  found  it  difficult  to 
reach.  In  one  case  the  intendant  ordered  a  seignior  to  have 
his  mill  built  on  the  riverside,  where  it  could  be  reached  by 
boat,  or  else  to  have  a  road  built  up  to  it.  ^  In  another  case 
the  same  official  allowed  certain  habitants  exemption  from  the 
banal  obligation  until  their  seignior  should  have  opened  up  a 
passable  road.*  In  a  country  where  seigniories  extended,  as 
they  frequently  did,  over  from  200  to  500  square  miles,  the 
difficulty  of  transporting  tho  grain  to  the  mill  was  often  very 
serious.  As  to  the  choice  of  a  mill  site,  the  seignior  was 
unhampered.  If  he  saw  fit  to  erect  it  upon  land  which  had 
been  already  granted  to  a  habitant,  he  could  obtain  a  decree 
from  the  council  reuniting  this  land  to  his  demesne,  the  habi- 
tant being  given  the  privilege  of  selecting  a  new  concession 
of  similar  extent  from  any  portion  of  the  ungranted  lands  of 


lEd.  etOrd.,  11,497. 
«TU.  and  Docs.,  II,  156. 


3Ed.  etOrd.,  11,210. 

*  Perault's  Extracts,  p.  71. 


■ 


THE    DROIT    DE    BANALITE. 


219 


J. 


■ 


the  seipfniory.      In   some   cascH   decrees  of   this   kind  were 
granted. ' 

In  response  to  repeated  complaints  that  habitants  were  being 
put  to  much  inconvenience  by  having  to  wait  on  windmills  to 
start  running  during  calm  weather,  an  ordinance  was  issued 
in  1730  giving  all  persons  liberty  to  take  their  grain  to  a  water- 
power  mill,  if  compelled  to  leave  their  grist  unground  at  the 
seigniorial  windmill  for  more  than  two  days.'  This  provision, 
which  was  greatly  appreciated  by  the  habitants  in  general, 
was  issued  chiefly  through  the  influence  of  Giles  Hocquart, 
who  with  the  exception  of  Jean  Talon— the  Colbert  of  New 
France— was  perhaps  the  most  public-spirited  as  well  as  the 
most  energetic  of  the  colonial  intendants.  Hocquart  during 
the  course  of  his  regime  rigidly  obliged  seigniors  to  keep  their 
mills  in  good  repair,  going  so  far  as  to  threaten  them  with 
entire  deprivation  of  the  banal  right  in  the  event  of  their 
failure  to  comply  with  his  demands. ■' 

In  the  course  of  one  of  his  dispatches,  Hocquart  advised 
the  French  Government  that  the  quality  of  the  flour  turned 
out  by  the  banal  mills  would  be  materially  improved  if  the 
grain  were  only  properly  cleaned  before  being  ground,  but 
that  there  were  no  fanning  mills  in  the  colony.  The  seign- 
iors, in  all  probability,  deemed  it  sufficient  to  build  the  mills 
and  to  run  them  for  the  most  part  at  a  loss,  without  provid- 
ing subsidiary  appliances.  The  French  King,  however,  with 
his  usual  zeal  for  the  development  of  colonial  industry, 
promptly  gratified  the  desire  of  the  intendant  by  sending  out, 
in  1732,  six  fanning  mills  at  his  own  expense.  On  arrival  in 
the  colony,  these  were  distributed,  gratis,  among  six  of  the 
most  important  seignioral  mills— those  of  the  seigniories  of 
Sault  a  la  puce.  Petit- Pre,  Beauport,  Point  de  Levy,  St. 
Nicholas,  and  St.  Famille— and  an  ordinance  *  was  forthwith 
issued,  compelling  the  owners  of  those  mills  "to  have  all  the 
wheat  of  whatsoever  quality  sent  to  them  passed  and  fanned 
before  its  conversion  into  flour."  It  was  further  ordered  that 
the  millers  should  take  their  toll  merely  upon  the  cleaned  and 
fanned  grain  and  not  upon  the  whole,  but  that  in  compensa- 
tion xGv  tula  tiiC  milicrs  should  be  allowed  to  exact  6  deniers 
er  mi  not  on  the  whole  grist,  in  addition  to  the  usual  toll  of 


1  Ed.  et  Ord.,  II,  466. 
« Ibid.,  340. 


sjbid.,  II,  519. 
<  Ibid.,  352. 


220 


AMKRK^AN    HISTORICAL    AHHOCIATION. 


All  "Uiillinjr,s"  vv(m-c  to  be  j.Mvon  back  to  tho 


ono- fourteenth, 
habitant. 

During  the  course  of  the  next  year  Hve  more  fanninjr  ,„ills 
were  Her  t  out  and  distributed  amonjr  the  seignioral  nulls  in 
the  district  of  Montreal,'  the  King  promising  to  ke(>p  up  the 
good  work  but  failing  thereafter  to  do  80.     T\w  seigniors 
themselves  showed  very  little  industrial  enterpris.'  at  any  time, 
and  this  may  be  accounted  for  partly  by  the  comparative  pov- 
erty of  the  greater  portion  of  their  tuimlier,  and  partly,  too, 
by  the  fact  that  many  of  theni  were  retired  military  and  ad- 
ministrative officials   with   little    taste   for    industrial    life. 
Absenteeism,  one  of  the  curses  of  the  seigniorial  system  in 
France,  was  never  an  evil  in  Canada,  and  the  writer  who 
declares   that  "the  peasants  looked  upon  thei)-  lords  in  the 
light  of  taxpayers  wringing  money  out  of  labor  to  spend  it  in 
luxury  in  Quebec  and  MontreaP'^  has  attributed  to  the  co- 
lonial seigniorial  system  a  features  which  it  fortunately  never 
inherited  from  the  motherland.     The  great  majoi-itv  of  the 
Canadian  seigniors  shared  the  rough  evervday  life  of  their 
pioneer  dependents— very  frequently  they  \iu2nl)ered  among 
their  censitaires  men  better  endowed  with  worldly  goods  than 
themselves— and  the  number  of  seigniors  whose  means  per- 
mitted luxurious  idleness  in  the  towns  could  b(»  counted  upon 
the  fingers  of  one  hand.'^     In  France,  again,  the  seignior  was 
almost  invariably  a  member  of  the  nobless-;  in  the  colony 
this  was  rarely  the  case,  with  the  result  that  there  was  no 
legal  bar  to  his  engaging  in  manual  work,  and  the  colonial 
prototype  of  the  haughty  seigneui-  who  loungc^l  in  the  corri- 
dors of  Versailles  might  not  infrequently  be  found  crushing 
grain  in  his  little  mill  on  the  banks  of  the  St.  Maurice. 

The  seigniorial  mills  were  usually  constructed  of  timber, 
but  in  not  a  few  cases  they  were  built  of  stone,  many  of  the 
seigniors  expressly  reserving  in  the  titles  of  their  subgrants 
the  right  to  take  materials  for  this  purpose  from  the  conceded 
lands  without  compensation.  In  a  few  cases  the  habitants 
were  obliged  to  render  their  corvee,^  in  preparing  the  materials 
and  even  in  erecting  the  mills,  but  this  practice  was  never 
sanctioned  by  the  authorities.     The  stone  mills  were  usually 

two  to  the  mill  of  the  seigniory  of  Terrebonne. 
2  Watson,  Constitutional  History  of  Canndii,  p.  12. 
»C.  F.  Suite,  La  Tenure  Seigueuriale  in  Revue  Cunadionne  (August,  1882). 


A 


THE    DROIT    DE    BANALITK. 


221 


* 


.^^ 


loopholod  ill  ordvA'  to  bo  availahio  tin  places  of  refuge  and 
deferiHe  in  the  event  of  Indian  attacks,  and  the  mill  of  the 
.seigniory  of  St.  Sulpice  at  Montreal  was  one  of  the  chief 
strongholds  of  the  town.  The  religious  orders  Vy-^N  in  fact 
able  t(.  build  much  betfr  mills  upon  their  various  seigniories 
than  were  the  individual  lay  seigniors,  and  these  they  almost 
invariably  fortified,  for  during  the  greater  part  of  the  period 
of  h  rench  possession  no  part  of  Canada  was  safe  from  an 
Inxjuois  assault. 

Three  (juestions  have  be«.n  much  mooted  in  regard  to  the 
extent  of  the  droit  de  fianalite  in  the  colony.     The  first  of 
these  was  as  to  whether  all  the  grain  produced  by  the  censi- 
taires  was  subject  to  the  })anal  obligation,  or  only  such  portion 
of  It  as  was  required  for  the  consumption  of  the  producer 
and  his  family.     Some  of  the  seigniors  took  the  fcu-mer  view 
but  the  authoritiivs  thought  ditferentlv  and  ordinances  were 
refused  to  seigniors  who  wished  thereby  to  compel  hal)itants 
to  bring  all  their  grain  to  the  seigniorial  mills.     On  the  other 
hand,  the  intendant  uovvr  refused,  in  default  of  good  reason 
to  the  contrary,  to  enforce  the  obligation  in  regard  to  grain 
used  by  the  habitant  and   his  family. »     The  action  of'  the 
authorities  in  this  regard  has  been  upheld  by  the  most  author- 
itative writers   upon  the  subje^^t  of   French-Canadian  civil 
law,^  and  would  seem  to  be  borne  out  by  the  wording  of  the 
long-suppressed  arrC't  of  1086,  which  speaks  of  the  neglect  of 
the  seigniors  to  build  the  banal  mills  "necessary  for  the  sub- 
sistence  of  the  inhabitants,"  a  feature  which  might  be  taken 
to  show  that  in  the  opinion  of  the  French  Crown  the  primary 
object  of  the  system  of  banal  mills  in  the  colonv  was  to  insure 
the  grinding  of  grain  for  home  consumption.  "  The  question, 
however,  was  never  of  very  great  importance,  for  the  hab- 
itants were  generally  able  to  produce  but  little  grain  more 
than  -       sufficient  for  their  own  use.     It  was  by  no  means  an 
uncommon  occurrence  to  import  flour  from  France  for  the 
use  of  the  urban  population  of  the  colony. 

Then  there  was  the  more  important  question  as  to  whether 
the  banal  obligation  extended  to  all  grain  intended  by  the 
habitant  for  his  own  use,  or  the  wheat  alone.  As  to  the  ex- 
tent onhe^ght  in  France  there  is  some  difference  of  opinion 

1  Cf.  Case  of  the  Seignior  of  Ohninplain,  Ed.  et  Old.,  II  452 

2  Cugnet.    Traite  de  la  loi  de.s  fief.s,  p.  36. 


222 


AMERICAN    H1ST()RI(-AL    AflSOCIATION. 


iimot.^r  writ^TH.     Iloniio.i  d,.  Pansov '  affirms  that  it  oxtendod 
not  ()niy  to  wlioat,  but  to  Imilry,  buckwh.'at,  and  all  otiioi- 
j,M-ain.s.     I>ni/ait,  in  Iuh  doi'isions,-  <|uote.s  a  judjrnuuit  of  tho 
pjirliainont  of  lin'tii<riu>  in  whi<h  a  soijrnjor  was  .sustained  in 
his  claim  that  harh-.v  should  be  included  within  the  catcjrory 
of  cereals  subject  to  the  droit  de  banalite.     Other  auJhorities 
of  equal  weight  de<'lar(^  that  th(>  rijrht  usually  extended  to 
wheat  ordy.'     No  doubt  the  extent  of  the  obiijration  varied 
in  different  parts  of  the  country,  but  on  the  whole  tho  genj'ral 
weight  of  opinion  seems  to  be  in  favor  of  the  view  that  it 
was  properly  applica})le  to  wheat  alone.<     In  Canada,  on  the 
contrary,  the  obligation   was  jrcMierally  understood  to  have 
been  applicable  to  grain  of  all  kinds.     The  expression  made 
use  of  in  the  arrets  and  ordinances  was  invariably  "porter 
moudre  leur  grains,"''  and  tht^  term  "grains"  can  scarcely  be 
construed  to  have  meant  cereals  of  any  one  kind.     The  same 
expression  is  used  in  the  titles  of  lands  gi-ant(>d  en  censive  hy 
the  Crown  in  the  vicinity  of  Detroit,  Mich.,*''  and  it  is  also 
the  wording  usually  employed  by  the  various  seigniors  in 
their  titles  of  concession.  •  In  some  few  of  the  latter  cases, 
however,  the  expression  "porter  moudre  leur  bled"  occurs,' 
iii  which  case  the  intention  would  seem  to  have  been  to  attach 
the  obligation  to  wheat  alone.     These  cases  were  very  excep- 
tional, and,  in  general,  the  faci  that  the  intendant  was  appar- 
ently only  once^  called  upon  to  decide  the  question  in  favor 
of  the  extension  would  go  to  show  that  the  extension  of  the 
right  to  grain  of  all  kinds  was  not  opposed  by  the  habitant. 
Finally  there  was  a  question  as  to  whether  a  censitaire  pur- 
chasing grain  outside  the  limits  of  the  seigniory  and  having 
it  brought  within  was  or  was  not  bou    i  to  havu  it  ground  at 
the  seigniorial  mill.     Henrion  de  Pansey,  on  this  point,  quotes 
an  arret  de  Goneose,  in  which  it  is  authoritively  stated  that 
all  grain,  whether  grown  within  or  brought  within  a  seign- 
iory, was  subject  to  the  banal  right."    There  is  no  colonial 

1  Dissertationes  Fcodales  I,  Vo,  Banality,  p.  9. 

^Nouveau  Denizart,  p.  648,  sec.  5. 

■'Le  Febre,  III,  16H,  173-17.'-);  Rousseau  de  la  Combe,  II,  67. 

4 Cf^  Opinion  of  .ludgeCaron  (Reports  of  the  Special  Seigniorial  Abolition  Court  18M) 
Vol.  a,  p.  38d. 

"Cf.  Arret  of  167.^  ordinances  of  10th  June,  1728,  and  23d  July,  1742,  Ed.  et  Ord  Vol   11 
oTitrosdesSeigneuries,  I,  pj..  235,  2.18.  '      ' 

'  Ed.  et  Ord,  II,  323. 
8  Henrion  de  Pansey,  op.  cit.,  I,  pp. 9-10. 


THE    DROIT    I)R    HANALIT^. 


223 


arrot  or  ordinunco  Jjearin^r  dim-tly  on  tho  point;   but  thr 
understnnd.M^r.socnistolmvchoon  that  vvhrn  jrmin  was  both 
purchased  and  ^r.-onnd  without  tho  s.Mu-nioPv,  th..  tlour  nilirht 
bo  brou«-ht  honu'  and  used  without  tho  n.M(..ssity  of  any  toll 
b«Mn«-  paid  to  fhe  seignior  within  whos..  Ii,.f  i|   was  brought 
But  whoro  the  grain  was  pur.hased  outside  the  seigniory  and 
brought  home  unground,  it  ranked  on  tho  same  footing  as 
gram  grown    within   the  seignio.y.     The  general  tendency 
was  to  look  on  the  right  of  banality  as  a  personal  right      It 
was  not  beeause  the  grain   had  been  grown  within  the  seign- 
iory that  It  was  subject  to  the  obligation,  but  rath.-r  because 
the  habitar.t  owning  it  lived  within  the  seigniorial   jurisdic- 
tion.     Ihus  gram  purchased  within  th«>  limits  ..f  a  seigniory 
by  a  person  without  was  subject  to  the   banal  ,  i.Jijration   not 
in  the  seigniory  within  which  the  grain  was  bought,  but  in 
the  seigniory  in  which  he  was  a  censitaire. 

The  right  of  banality  carried  with  it  the  right,  not  only  to 
prevent  the  erection  of  other  than  seigniorial  mills   within 
the  seigniory,  but  even  to  compel  the  demolition  of  such 
after  they  had  been  erected.     Instances  are  on  record  of  the 
enforcement  of  these  latter  rights  by  ordinances  of  theinten- 
dant    proceedings   which   were   attencted    with  considerable 
Hardship.     For  example,  one  of  the  inhabitants  of  the  seign- 
iory of  Lauzon  was,  in  1698,giA'en  permission  by  the  seignior 
to  erect  a  mill,    there   being   no   banal  mill   in   operation 
bhortly  afterwards  the  seigniory  was  sold  and  the  new  seignior 
at  once  ordered  the  mill  closed,  and  on  the  refusal  of  the 
owner  to  comply,  an  intendant's  ordinance  was  procured  to 
enforce  compliance.'     Similarly  the  brethren  of  the  hospital 
(I^reres  Charron)  at  Montreal  had  erected  a  small  windmill  to 
supply  their  own  wants.     This  mill  was,  however,  within  the 
limits  of  the  seigniory  })elonging  to  the  Seminary  of  Sulpice 
and  the  latter  applied  for  permission  to  have  the  mill  demol- 
ished.    The  intendant  ordered  this  to  be  done  in  case  the  mill 
should  be  found  to  be  infringing  upon  the  seigniorial  rights 
of  the  seminary.^ 

It  will  be  seen,  therefore,  that  on  the  whole  the  banal  obli- 
gatiou  did  "otjn^e  period  of  the  French  regime  bear  very 

1  Ed.  et  Ord.,  II,  145.  ~ 

•-■This  arret  i..  not  printed.    Its  uuthontieity  is  vouclied  for  bv  Chief  Justice  Sir  r    H 

Lafontalne  (in  his  judgment  of  the  special  court,  18M,  p.  334).  ' 


224 


AMERICAN    HISTORICAL    ASSOCIATION. 


heavily  upon   the   habitant.     In  the  majority  of  cases  the 
seignior  was  the  loser.     With  the  passing  of  the  colony  into 
the  hands  of  Great  Britain,  however,  this  state  of  affairs  was 
somewhat  changed.     By  the  treaty  of  Paris  the  seigniors  were 
guaranteed  full  possession  of  their  ancient  privileges,  and  with 
the  great  growth  in  population  which  succeeded  the  change  of 
colonial  ownership  these  rights,  not  the  least  important  of 
which  was  the  droit  de  banalite,  became  much  more  valuable. 
In  very  many  of  the  seigniories  the  banal  mill  was  no  longer 
capable  of  doing  all  the  work  required  and  it  became  the  cus- 
tom of  the  seigniors  to  allow  the  habitants  to  take  their  grist 
elsewhere  upon  the  payment  of  a  tixed  sum,'     To  this  neces- 
sity of  paying  two  tolls  the  habitants  soon  began  to  stren- 
uously object,  but  the  newly  established  English  courts  in 
the  cases  which  came  before   them    invariably  upheld  the 
claims  of  the  seigniors.     Prominent  among  the  decisions  in 
this  regard  was  that  given  in  the  case  of  Monk  v.  Morris,'^  in 
which  the  court  distinctly  declared  that  the  droit  de  })analite 
vixisted  in  full  force  under  the  new  regime;  that  it  was  enforce- 
able even  without  the  possession  of  specific  title:  that  it  applied 
to  grain  of  all  Kinds;  that  seigniors  could  compel  the  demoli- 
tion of  any  nonseigniorial  mills  erected  within  the  limits  of 
their  seigniories.     The  seigniors  in  these  matters  had  custom 
on  their  side,  and  precedents  in  the  eyes  of  the  English  jud'^es 
wore  all-powerful.     In  the  eyes  of  the  French  intendants'^of 
the  old  regime   precedents  had  count(>d  for  almost  notning 
when  the  course  marked  out  by  them  conflicted  with  what  was 
deemed  the  general  weal.     The  legal  result  of  the  conquest 
was  thus  to  deprive  the  habitant,  of  one  of  their  chief  sources 
of  protection. 

During  the  whole  of  the  first  half  of  the  present  century  the 
habitants  of  French  Canada  kept  clamoring  for  the  abolition 
of  the  seigniorial  system  with  its  various  incidents,  of  which 
the  droit  de  banalite  now  formed  one  of  the  most  <)bjectional)le, 
and  in  1854  their  ends  were  obtained  by  the  passing  of  the 
"seigniorial  tenures  abolition  act,"''  by  the  terms  of  which  all 

1  It  is  interesting  to  note  that  in  Enghind,  wiicrc  tlio  droit  do  himalito  existed  to  some 
extent  for  ti  eonsidemhle  time,  it  was  frc(iueiitl.v  tlie  praetiee  of  the  townsmen  within 
seigniorial  iurisdietiuns  to  obtain  exemption  innii  its  uxficisi- bv  iiic  payment  of  a  sum 
in  eommuUition.  In  tliis,  however,  they  were  not  always  sneeessfnl,  as,  e.g.,  tlie  ea.se  of 
the  men  of  St.  Albans  (Cunningham,  Growth  of  Knglish  Industry  and  Commeree,  Vol.  I), 
who  had  not  obtained  exemption  as  lute  as  1381. 

23  Lower  Canada  Reports,  pp.  17  el  seq.  iln  Viet.,C,  III. 


THE    DROIT    DE    BANALITE.  225 

lands  held  on  lief,  en  arriere-fief,  en  censive,  and  en  roturier 
were  converted  into  free  and  common  socage  holdings,  due 
compensation  being  awarded  to  the  seigniors,  partly  in  the 
form  ot  constituted  rents  upon  the  land  and  partly  in  funds 
ot'lt'  ""f    ■  U-T7-     ^^'  ^^"^«*^^"^  regarding  the  extent 

rU\tl\  :  '^'  '"'^'""^'^^  ^'^^^^^^  compensation  was 

retell ed  to  a  special  court  composed  of  all  the  iudjres  of  the 

superior  courts/     In  regard  to  the  right  of  banality  this  couit 
decided  that  while,  according  to  the  custom  of  Paris,  this 
obligation  was  a  contractual  and  not  a  prescriptive  one   the 
arre    ot  1086  had  abrogated  this  rule  and  made  the  droit  de 
banaJite  a  gen(^ral  right  incidental  to  all  grants  en  fief      The 
court,  moreover  decided  that  the  banal  right  extended  to  grist 
mills  alone  and  did  not  apply  to  works  (usines)  of  other  kinds- 
that  It  apphed  only  to  suc-h  grai.i  as  was  used  bv  the  habitant' 
and  that  lands  which  had  been  granted  within  th(^.  seigniories 
en  tranc  aleu^  were  not  subject  to  the  obligation.     Seigniors 
who  had  erected  and  operated  mills  were,  adjudged  entitled  to 
compensation,  but  those  who  had  not  done  so  prior  to  1854 
were  deemed  by  the  court  to  have  forfeited  any  right  to 
indemnity      The  act  of  1854  provided  that  expert  valuators 
should   visit  all   the   seigniories   and   should    ^^  estimate  the 
probable  decrease   (,f  any)   in  the  net  yearly  income  of  the 
seignior  resulting  from  his  loss  of  his  right  of  banality  "3 
taking  into  account  the  foregoing  conclusions  of  the  court- 
the  sum  so  estimated  to  be  apportioned  upon  the  gmnted  Imds 
ot  the  seigniory  in  proportion  to  their  extent.     A  larP-e  sum 
was  also  set  aside  from  the  public  treasury  for  the  reduction 
ot  the  sums  so  apportioned. 

Thus  ended  the  droit  de  banality  in  Canada.  There  was 
however,  another  species  of  banal  right  which,  though  bv  no 
means  as  important  in  the  economic  history  of  New  France 
calls  for  a  passing  notice.  This  was  the  droit  de  fours  banalitc' 
or  right  ot  ov(m  banality.  By  the  Coutume  de  Paris  *  the  rij^hts 
ot  oven  and  mill  banality  had  been  placed  upon  a  similar  ba  ,'. 
tliat  IS,  a  seignior  could  compel  his  censitaires  to  carry  their 
rtough  to  ^seigniorial  oven  to  be  baked  only  if   he  had 


'  Doc-HntiK  d.-s  Trihunaux,  1851,  Vol.  A. 

^Some  fow  froL.lu.l.l  RraiU.s  had  been  made  by  seigniors. 

•'IS  Vict.C.,;i,Sec.Vl,i>ar.3. 

■•  An.  71. 


HIST   UD,  VOL   I 15 


22<> 


AMERI(!A>f    HISTORICAL    ASSOCIATION. 


oxpivssly  stiimliitod  for  this  privilege  in  his  title  deeds  of  coji- 
eession.  As  far  us  I  ciin  ascertain  there  was  oidy  one  banal 
oven  ever  enn-ted  in  (^inada,  viz,  tiiat  of  M.  Aniiot,  seij^nior 
of  Vineelotte,  but  the  ()l)lii.iition  was  inserted  in  many  of  the 
title  de(Hls.  In  Kaudot's  dispat<-h  of  November  10,  1707,  to 
whieh  referenee  has  already  l)een  made,  the  writer  speaks  of 
the  ]-i_irlit  of  oven  ))anality  as  beino-  <mo,  of  the  abuses  of  the 
(•oloniai  seij^-niorial  system.      He  says: 

Tlu^  Keigniurs  liaw  also  intn.diu-ed  in  tliiMr  grants  the  exduaive  riglit 
of  baking  (.1-  keeping  an  oven  (fonrs  banal),  of  which  tii.-  inluibitants 
can  never  avail  themselves,  ])e('anse  the  habitations  ])eing  at  great  dis- 
tanix^s  from  the  seignior's  honse  wlu're  this  oven  nuist  be  established  (  whicli 
indeed  could  not  be  in  a  more  c(invenient  i)lace  for  them  wherever  i>Iaced, 
since  the  habitaticms  are  very  distant  from  one  another),  they  could  not 
possibly  at  all  seasons  carry  their  dough  to  it;  in  winter  it  wonld  be  frozen 
before  it  got  there. 

He  contiiuies: 

The  seigniors,  moreover,  feel  themselves  so  ill-grounded  in  claiming  this 
right  because  of  its  im{)ossil)ility  that  they  do  not  exact  it  now,  but  they 
will  at  some  futuni  time  make  use  of  this  stii)ulation  to  com])el  the 
inhabitants  either  to  submit  to  it  or  redeem  themselves  from  it  by  means 
of  a  largi'  line;  in  this  Avay  will  the  seigniors  have  ac(iuired  a  right  from 
which  the  inhal)itants  derive  no  benelil.  This,  my  Lord,  is  what  I  call 
getting  a  title  to  vex  them  afterwards.' 

Replying-  to  this  dispatch,  the  French  minister,  M.  de  Tont- 
ehartriiin.  advised  that  ^'with  respect  to  the  privilege  of  bak- 
ing in  the  seignioral  oven,  idl  that  is  to  be  done  is  to  follow 
and  ejiforce  the  arret  of  IbSO,  by  whicli  that  matter  has  be(Mi 
settled/'-  The  minister  was  here  in  error,  for  th(>  arret  of 
1(I8H  had  reference  wholly  to  banal  mills,  and  contained  not  a 
word  about  banal  ovens.  It  had  sim])ly  ordered  that  seigniors 
who  claimed  the  right  to  erect  l)an;d  mills  should  erect^them 
at  onee  or  lose  the  right.  The  (jiu'stion  of  ovens  had  not  yet 
arisen.  This  adviee  of  the  minister  did  not  satisfy  the  colo- 
nial intendant,  who,  in  r(>ply.  jjointed  out  that  what  he  wanted 
was  the  entire  suppression  of  the  right  of  oven  banality,  the 
impossibility  of  enforcing  which,  he  declared,  would  beconn- 
apparent  when  it  was  considered  that  "the  iidia))itants  would 
have  to  carry  their  dough  a  distance  of  2  or  8  leagues  in  the 
depth  of  winter.""' 

'Kiuiddtii  I'Dlil.'liiiHraiti.KMli  N<ivrni)KT,  1707:  ('.irivsiM)n(l..iuc  Ot'Tioralr,  Vol.  XXVI. 
-Puiiti'lmrtniiTi  u  Jtuudol,  l:iili  June,  I70S;  Seigniorial  DocniiiK'nls  (Its:)-!),  li.u. 


/  s^ 


THE    DROIT    I)E    BANAIJTE. 


227 


He  savs; 


It  18  a  ri^rht  which  ......t   1h.  .uppreHMod,  h(van«>  the  inhabitants  can 

derive,  no  benefit  hum  it,  and  the  Hei-niors  have  entablished  „r  wi«h  to 
establish  It  only  to  oblige  then,  to  redeem  themselves  from  it  by  conde- 
scending to  pay  in  future  some  heavy  charge.  It  is  not  so  with  the  banal 
nnds,  the  latter  bein^  always  a  benefit  to  the  inhabitants  who  have  not 
the  means  of  erectinjr  mills  themselves,  svhereas  the  banal  oven  is  a  dis- 
a.lvanta^e,  there  bein«  not  one  of  them  who  has  not  an  oven  in  his  own 
nous(>  and  as  nuich  wood  as  lie  wants  to  heat  it.' 

This  convspondonco  is  interesting  as  showing-  the  valuable 
services  rendered  l.y  the  colonial  intendanls  in  the  way  of 
aflording-  protection  against  unjust  seigniorial  exactions  a 
feature  which  was  often  sadly  lacking  in  the  conduct  of  the 
provincial  intendants  at  home.  Itserves,  further,  to  showthat 
in  the  colony  seigniorial  rights  were  viewed  by  the  authorities 
as  resting  upon  a  much  more  nearly  utilitarian  basis  than  in 
trance. 

The  forebodings  of  the  zealous  intendant  were,  however 
not  well  founded,  for,  with  th(>,  exception  of  the  single  case 
given,  the  seigniors  do  not  appear  to  have  exacted  either  the 
right  of  oven  l)anality  or  a  money  payment  in  its  stead. 

In  France  the  seignior  enjoyed  the\-ight  to  compel  his  c(mi- 
sitaires  to  have  their  grapes  pressed  in  the  seigniorial  wine 
press,  and  this  privilege,  especially  in  the  southern  part  of 
i^^i-ance,  was  a  very  remunerative  one.  But  in  the  colony 
there  were  no  grapes  and  consequently  no  winepresses,  seign- 
iorial or  otluM-wise. 

It  has  been  th(>,  practice  of  almost  all  writers  on  the  history 
of  Canada  during  the  French  regime  to  look  upon  the  seign- 
iorial system  as  one  of  the  chief  causes  of  tardv  "olonial 
development,  and  the  action  of  the  French  (Government  in  re- 
gard to  the  establislmient  of  seigniorial  mills  has  come  in  for 
especial  criticism.^^  One  writer  goes  to  the  other  extreme 
declaring  that  the  banal  right  remained  '^ilmost  a  dead  let- 
ter;"' but  the  fact  is,  as  I  have  endeavored  to  show,  that  the 
iM-ench  Government  audits  colonial  representatives  souo-ht 
to  develop  the  system  of  banal  mills  in  the  interests  of  the 
poorer  habitants  and  not  in  the  interests  of  the  seigniorial 
proprietors.     From   the   fact   that   royal  edicts  were  found 


iRaurtoti'i  I'ontchartniin.OctolM'r  18,  ITOS;  rorr.(;(''ii.,  Vol  XXVII 
-Cf  Parknmii,  olil  Rrfrjiin,  p  ;{,)^,_;j(), 

Hioldwiii  Smith,  CanHdii  luid  the  Caiiailiau  Question,  p.  72 


228 


AMERICAN    HISTORICAL    ASSOCIATION. 


necessary  to  force  the  seigniors  to  avail  themselves  of  their 
privilege  it  is  very  probable  that  during  the  greater  part  of 
the  French  regime  there  would  have  been  no  mills  at  all  had 
the  milling  interest  been  left  to  private  enterprise.  Profit 
was  to  be  found  not  in  agriculture  nor  the  manufacture  of  the 
products  of  agriculture,  but  in  the  fur  trade,  and  the  French 
Government  must,  in  all  justice,  be  given  the  credit  of  having 
realized  that,  so  long  as  that  was  the  case,  the  habitants  nuist 
be  given  all  possil)le  facilities  for  turning  their  agricultural 
products  to  account  with  the  least  possible  expense  to  them- 
selves. So  long  as  the  population  was  sparse  the  system  of 
banal  grinding  was,  to  the  habitants,  convenient  and  inexpen- 
sive. The  burden  fell  upon  the  seigniors  and  they,  though 
by  no  means  opulent  as  a  class,  were  after  all  best  able  to 
bear  it. 

De  Tocqueville  has  aptly  remarked  that  the  physiognomy  of 
a  government  may  be  best  judged  in  its  colonies: 

When  I  wish  to  study  the  spirit  and  faults  of  the  achninistration  of 
Louis  XIV,  I  nuist  go  to  Canada.  Its  deformity  is  there  seen  as  through 
a  microscope. 

As  regards  many  features  of  the  administration  of  Canada 
during  the  old  regime  this  remark  is  undoubtedly  true,  but 
as  regards  the  respective  attitudes  of  the  Government  toward 
the  exercise  of  the  droit  de  banaUte  in  Old  and  in  New  France, 
a  striking  exception  to  De  Toc(iueville's  generalization  makes 
itself  apparent. 


